CENTRAL INTELLIGENCE AGENCY INFORMATION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92B01283R000100070022-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 26
• Document Creation Date: December 23, 2016
• Document Release Date: September 13, 2013
• Sequence Number: 22
• Publication Date: September 10, 1984
• Content Type: REPORT

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98TH CONGRESS 1
2d Session
HOUSE OF REPRESENTATIVES
REPT. 98-726
Part 2
CENTRAL INTELLIGENCE AGENCY INFORMATION ACT
SEPTEMBER 10, 1984.?Committed to the Committee of the Whole House on the State
of the:Union-and ordered to be printed
Mr. BROOKS, from the Committee on Government Operations,
submitted the following
REPORT
together with
DISSENTING VIEWS
[To accompany H.R. 5164, which on March 15, 1984, was referred jointly to
the Permanent Select Committee on Intelligence and the Committee on Govern-
ment Operations]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Operations, to whom was re-
ferred the bill (H.R. 5164) to amend the National Security Act of
1947 to regulate public disclosure of information held by the Cen-
tral Intelligence Agency, and for other purposes, having considered
the same, report favorably thereon with an amendment and recom-
mend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
That this Act may be 'cited as the "Central Intelligence Agency Information Act".
SEC. 2. (a) The National Security Act of 1947 is amended by adding at the end
thereof the following new title:
"TITLE VD?PROTECTION OF OPERATIONAL FILES OF THE CENTRAL
INTELLIGENCE AGENCY
"EXEMPTION OF CERTAIN OPERATIONAL FILES FROM SEARCH, REVIEW, PUBLICATION, OR
"DISCLOSURE
SEc. 701. (a) Operational files of the Central Intelligence Agency may be exempted
by the Director of Central Intelligence from the provisions of section 552 of title 5,
United States Code (Freedom of Information Act), which require publication or dis-
closure, or search or review in connection therewith.
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"(b) For the purposes of this title the term 'operational files' means?
"(1) files of the Directorate of Operations which document the conduct of for-
eign intelligence or counterintelligence operations or intelligence or security li-
aison arrangements or information exchanges with foreign governments or
their intelligence or security services;
"(2) files of the Directorate for Science and Technology which document the
means by which foreign intelligence or counterintelligence is collected through
scientific and technical systems; and
"(3) files of the Office of Security which document investigations conducted to
determine the suitability of potential foreign intelligence or counterintelligence
sources;
except that files which are the sole repository of disseminated intelligence are not
operational files.
"(c) Notwithstanding subsection (a) of this section, exempted operational files
shall continue to be subject to search and review for information concerning?
"(1) United States citizens or aliens lawfully admitted for permanent resi-
dence who have requested information on themselves pursuant to the provisions
of section 552 of title 5, United States Code (Freedom of Information Act), or
section 552a of title 5, United States Code (Privacy Act of 1974);
"(2) any special activity the existence of which is not exempt from disclosure
under the provisions of section 552 of title 5, United States Code (Freedom of
Information Act); or
"(3) the specific subject matter of an investigation by the intelligence commit-
tees of the Congress, the Intelligence Oversight Board, the Department of Jus-
tice, the Office of General Counsel of the Central Intelligence Agency, the Office
of Inspector General of the Central Intelligence Agency, or the Office of the Di-
rector of Central Intelligence for any impropriety, or violation of law, Executive
order, or Presidential directive, in the conduct of an intelligence activity.
"(d)(1) Files that are not exempted under subsection (a) of this section which con-
tain information derived or disseminated from exempted operational files shall be
subject to search and review.
"(2) The inclusion of information from exempted operational files in files that are
not exempted under subsection (a) of this section shall not affect the exemption
under subsection (a) of this section shall not affect the exemption under subsection
(a) of this section of the originating operational files from search, review, publica-
tion, or disclosure.
"(3) Records from exempted operational files which have been disseminated to and
referenced in files that are not exempted under subsection (a) of this section and
which have been returned to exempted operational files for sole retention shall be
subject to search and review.
"(e) The provisions of subsection (a) of this section shall not be superseded except
by a provision of law which is enacted after the date of enactment of subsection (a),
and which specifically cites and repeals or modifies its provisions.
"co Whenever any person who has requested agency records under section 552 of
title 5, United States Code (Freedom of Information Act), alleges that the Central
Intelligence Agency has improperly withheld records because of failure to comply
with any provision of this section, judicial review shall be available under the terms
set forth in section 552(a)(4)(B) of title 5, United States Code, except that?
"(1) in any case in which information specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national
defense or foreign relations is filed with, or produced for, the court by the Cen-
tral Intelligence Agency, such information shall be examined ex parte, in
camera by the court;
"(2) the court shall, to the fullest extent practicable, determine issues of fact
based on sworn written submissions of the parties;
"(3) when a complainant alleges that requested records were improperly with-
held because of improper placement solely in exempted operational files, the
complainant shall support such allegation with a sworn written submission,
based upon personal knowledge or otherwise admissible evidence;
"(4)(A) when a complainant alleges that requested records were improperly
withheld because of improper exemption of operational files, the Central Intelli-
gence Agency shall meet its burden under section 552(a)(4)(B) of title 5, United
States Code, by demonstrating to the court by sworn written submission that
exempted operational files likely to contain responsive records currently per-
form the functions set forth in subsection (b) of this section; and
"(B) the court may not order the Central Intelligence Agency to review the
content of any exempted operational file or files in order to make the demon-
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stration required under subparagraph (A) of this paragraph, unless the com-
plainant disputes the Central Intelligence Agency's showing with a sworn writ-
ten submission based on personal knowledge or otherwise admissible evidence;
"(5) in proceedings under paragraphs (3) and (4) of this subsection, the parties
shall not obtain discovery pursuant to rules 26 through 36 of the Federal Rules
of Civil Procedure, except that requests for admission may be made pursuant to
rules 26 and 36;
"(6) if the court finds under this subsection that the Central Intelligence
Agency has improperly withheld requested records because of failure to comply
with any provision of this section, the court shall order the Central Intelligence
Agency to search and review the appropriate exempted operational file or files
for the requested records and make such records, or portions thereof, available
in accordance with the provisions of section 552 of title 5, United States Code
(Freedom of Information Act), and such order shall be the exclusive remedy for
failure to comply with this section; and
"(7) if at any time following the filing of a complaint pursuant to this subsec-
tion the Central Intelligence Agency agrees to search the appropriate exempted
operational file or files for the requested records, the court shall dismiss the
claim based upon such complaint.
"DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
"SEc. 702. (a) Not less than once every ten years, the Director of Central Intelli-
gence shall review the exemptions in force under subsection (a) of section 701 of this
Act to determine whether such exemptions may be removed from any category of
exempted operational files or any portion thereof.
"(b) The review required by subsection (a) of this section shall include consider-
ation of the historical value or other public interest in the subject matter of the
particular category of files or portions thereof and the potential for declassifying a
significant part of the information contained therein.
"(c) A complainant who alleges that the Central Intelligence Agency has improp-
erly withheld records because of failure to comply with this section may seek judi-
cial review in the district court of the United States of the district in which any of
the parties reside, or in the District of Columbia. In such a proceeding, the court's
review shall be limited to determining (1) whether the Central Intelligence Agency
has conducted the review required by subsection (a) of this section within ten years
of enactment of this title or within ten years after the last review, and (2) whether
the Central Intelligence Agency, in fact, considered the criteria set forth in subsec-
tion (b) of this section in conducting the required review.".
(b) The table of contents at the beginning of such Act is amended by adding at the
end thereof the following:
"TITLE VH?PROTECTION OF OPERATIONAL FILES OF THE CENTRAL INTELLIGENCE AGENCY
"Sec. 701. Exemption of certain operational files from search, review, publication, or disclosure.
"Sec. 702. Decennial review of exempted operational files.".
(c) Subsection (q) of section 552a of title 5, United States Code, is amended?
(1) by inserting "(I)" after "(q)"; and
(2) by adding at the end thereof the following:
"(2) No agency shall rely on any exemption in this section to withhold from an
individual any record which .is Otherwise accessible to such individual under the
provisions of section 552 of this title.".
SEC. 3: (a) The Director of Central Intelligence, in consultation with the Archivist
of the United States, the Librarian of Congress, and appropriate representatives of
the historical discipline selected by the Archivist, shall prepare and submit by June
1, 1985, a report on the feasibility of conducting systematic review for declassifica-
tion and release of Central Intelligence Agency information of historical value.
(bX1) The Director shall, once each six months, prepare and submit an unclassi-
fied report which includes?
(A) a description of the specific measures established by the Director to im-
prove the processing of requests under section 552 of title 5, United States Code;
(B) the current budgetary and personnel allocations for such processing;
(C) the number of such requests (i) received and processed during the preced-
ing six months, and (ii) pending at the time of submission of such report; and
(D) an estimate of the current average response time for completing the proc-
essing of such requests.
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(2) The first report required by paragraph (1) shall be submitted by a date which
is six months after the date of enactment of this Act. The requirements of such
paragraph shall cease to apply after the submission of the fourth such report.
(c) Each of the reports required by subsections (a) and (b) shall be submitted to the
Permanent Select Committee on Intelligence and the Committee on Government
Operations of the House of Representatives and the Select Committee on Intelli-
gence and the Committee on the Judiciary of the Senate.
SEC. 4. The amendments made by subsections (a) and (b) of section 2 shall be effec-
tive upon enactment of this Act and shall apply with respect to any requests for
records, whether or not such request was made prior to such enactment, and shall
apply to all civil actions not commenced prior to February 7, 1984.
SUMMARY AND PURPOSE
H.R. 5164 provides a limited exemption from the Freedom of In-
formation Act (FOIA) for specifically defined operational files
maintained by the Central Intelligence Agency. The bill will re-
lieve the CIA from the requirement under the FOIA to search and
review records in these operational files that, after line-by-line
review, almost invariably prove to be exempt from disclosure under
the FOIA. The bill will also improve the ability of the CIA to re-
spond to FOIA requests from the public in a timely and efficient
manner, without reducing the amount of meaningful information
releasable to the public.
HISTORY OF THE LEGISLATION
The Permanent Select Committee on Intelligence held a hearing
on earlier versions of the Central Intelligence Agency Information
Act (H.R. 3460 and H.R. 4431) on February 8, 1984.1 H.R. 5164 was
introduced following the hearing and was jointly referred to the
Committee on Government Operations and to the Permanent
Select Committee on Intelligence.
The Permanent Select Committee on Intelligence ordered H.R.
5164 reported on April 11, 1984, with an amendment in the nature
of a substitute. The bill was reported on May 1, 1984.2
The report of the Permanent Select Committee on Intelligence
accompanying H.R. 5164 contains a detailed discussion and expla-
nation of the purpose of the bill. That report is integral to an un-
derstanding of how H.R. 5164 should be interpreted and imple-
mented. The entire report of the Permanent Select Committee on
Intelligence is specifically incorporated by reference in this report.
A detailed history of earlier proposals affecting the obligations of
the Central Intelligence Agency under the Freedom of Information
Act is included in the report of the Permanent Select Committee
on Intelligence.3
COMMITTEE ACTION AND VOTE
H.R. 5164 was introduced by Representative Romano L. Mazzoli
on March 15, 1984. The Committee on Government Operations or-
dered the bill reported on July 31, 1984, by voice vote.
1 Legislation to Modify the Application of the Freedom of Information Act to the Central Intel-
ligence Agency: Hearing before the Subcommittee on Legislation of the House Permanent Select
Committee on Intelligence, 98th Cong., 2d Sess. (1984).
H.R. Rep. No. 98-726 Part 1, 98th Cong., 2d Sess. (1984) (Report to accompany H.R. 5164)
[hereinafter cited as "Intelligence Committee Report'].
Id. at 6-8.
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HEARINGS
On May 10, 1984, the Government Information, Justice, and Ag-
riculture Subcommittee held a hearing on H.R. 5164.4 Witnesses at
the hearing were:
?Charles A. Briggs, Executive Director, Central Intelligence
Agency, accompanied by Ernest Mayerfeld, Deputy Director of Leg-
islative Liaison; and Larry Strawderman, Information and Privacy
Coordinator;
?Mark Lynch, Staff Counsel, Project on Naional Security, Amer-
ican Civil Liberties Union.
?Charles S. Rowe, Editor and Co-Publisher, The Free-Lance Star,
Fredricksburg, Virginia, representing the American Newspaper
Publishers Association and the American Society of Newspaper
Editors;
?Angus Mackenzie, Director, Freedom of Information Project,
Center for Investigative Reporting, San Francisco, California; and
?Ralph W. McGehee, Fund for Open Information and Account-
ability, Inc., New York, New York.
DISCUSSION
I. BACKGROUND
The Freedom of Information Act has become an important vehi-
cle for gaining better public understanding of ?the operations and
decisionmaking processes of all government agencies, including the
Central Intelligence Agency. Because of the nature of CIA activi-
ties, however, many of :that agency's records have always been
exempt from disclosure because the information in those records is
classified or would reveal intelligence sources or methods.
Nevertheless, the CIA has released to the public significant infor-
mation as a direct or indirect result of the FOIA. Information re-
leased by the CIA under the FOIA has included:
Complete or partial copies of Director of Central Intelligence
Directives issued from 1946 to 1976 covering a wide range of
issues relating to the management, coordination, and general
conduct of intelligence activities;
Substantially., complete texts of significant National Intelli-
gence Estimates, including ?estimates relating to the 1962
Cuban missile crisis;
Memoranda from the CIA General Counsel to the Director of
Central Intelligence on the legality of covert action operations;
Records concerning efforts by former CIA Director William
Colby to forestall publication of news stories on the Glomar
Explorer; and
Internal CIA studies of particular intelligence operations
such as the Berlin tunnel operation in the 1950's.
H.R. 5164 will exempt specifically defined CIA operational files
from the search and review requirements of the FOIA. These oper-
ational files contain information documenting intelligence sources
4 CIA Information Act: Hearing on HR 5164 before a Subcommittee of the House Committee
on Government Operations, 98th Cong., 2d Sess. (1984) [hereinafter cited as "Government Oper-
ations Hearings'''.
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and methods. Because of the sensitivity of this data, little, if any,
has ever been released under the FOIA.5
Although H.R. 5164 provides a limited exemption from the Free-
dom of Information Act for selected CIA records, the legislation
does not make any change in the basic policy on which the FOIA is
based. In fact, H.R. 5164 represents a reaffirmation by the Congress
that the principles of Freedom of Information are applicable to the
CIA.
H.R. 5164 leaves the Central Intelligence Agency subject to the
FOIA. It confirms that the CIA maintains information about which
the public may legitimately inquire. It recognizes that the FOIA
plays a vital part in maintaining the public's faith in government
agencies, including agencies like the CIA which must necessarily
operate substantially in secret. The continued availability of infor-
mation under the FOIA helps to foster public confidence that the
powers of the CIA are not being misused and that the CIA is serv-
ing the national interest.
H.R. 5164 is consistent with the purposes of the FOIA because it
will not interfere in any way with the processing of FOIA requests
for major categories of CIA information. For example, the following
types of information will be subject to FOIA search and review re-
quirements to the same extent that they are today:
(1) All intelligence disseminations, including raw intelligence
reports direct from the field;
(2) All matters of policy formulated at Agency executive
levels, even operational policy;
(3) Information concerning those covert actions the existence
of which is no longer classified;
(4) Information concerning U.S. citizens and permanent resi-
dent aliens requested by such individuals about themselves;
and
(5) Information concerning any Agency intelligence activity
that was improper or illegal or that was the subject of an in-
vestigation for alleged illegality or impropriety.
H.R. 5164 will not produce any meaningful change in the amount
or type of information that is disclosed under the FOIA. This was
confirmed by CIA Executive Director Charles A. Briggs, who testi-
fied that the bill will not result in the withholding of any informa-
tion that is now made public.6
Mark Lynch of the ACLU reached a similar conclusion. He testi-
fied that the bill will not enable the CIA to withhold any meaning-
ful information which the Agency is now required to release or
which it would be required to release under any conceivable stand-
ard for classification.7
Because H.R. 5164 will not substantively change the information
that the CIA is obliged to disclose in response to the FOIA re-
Section 702 of the National Security Act of 1947, as amended by H.R. 5164, provides for a
decennial review of exempted operational files by the Director of Central Intelligence to deter-
mine whether exemptions may be removed from any category of operational files. This section
provides a new mechanism for reviewing categorical exemptions and determining whether
records can be declassified or otherwise released because of historical value or other public in-
terest. The review may actually lead to the release of some information that would not have
otherwise been made available under existing FOIA or declassification procedures.
6 Government Operations Hearings at 33.
7 Id. at 47.
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quests, the bill can be viewed as a procedural reform of the FOIA
responsibilities of the CIA. In essence, H.R. 5164 will make it less
burdensome for the CIA to deny access to files that are already
exempt. Instead of reviewing records in operational files on a page-
by-page, line-by-line, basis, the CIA will be able to deny most re-
quests for records in these files in categorical fashion.
The benefits of this simplified procedure are significant. For re-
questers, the abbreviated administrative processing time for re-
quests involving excluded operational files will shorten the time
that it takes the CIA to respond to all other FOIA requests. Cur-
rently, there is a two to three year backlog of FOIA requests, and
much of the delay is due to the workload the Directorate of Oper-
ations in searching and reviewing the kinds of materials that are
inevitably exempt from disclosure anyway.8
The Committee takes note of the commitment made by CIA Di-
rector William Casey in an April 27, 1984, letter to Chairman
Edward Boland of the Permanent Select Committee on Intelli-
gence. Director Casey stated that upon enactment of H.R. 5164, the
CIA will:
establish a specific program designed to produce compli-
ance with the current FOIA processing deadlines for new
requests and to effect a substantial reduction, if not the
entire elimination, of the current backlog of FOIA re-
quests.
Casey also committed the CIA to continue the current budgetary
and personnel allocation for FOIA activities during the two year
period following enactment8
Mark Lynch of the ACLU described the current backlog as
making the FOIA "all but useless except for those people who are
extraordinarily patient." 10 The Committee agrees. The Committee
considers the promise of a substantial reduction in the response
time for FOIA requests by the CIA as a primary benefit of the bill.
H.R. 5164 should restore the usefulness of the FOIA at the CIA
without any meaningful limitations on the amount of information
that will be released.
Improvements in the processing of FOIA requests will also
produce benefits for the CIA. Experienced intelligence officers are
used in the review of CIA documents for release under the FOIA.
H.R. 5164 will reduce the diversion of these experienced officers
away from their operational duties.
The exemption of operational files will also contribute to the
overall security of CIA files. The CIA maintains self-contained,
compartmented filing systems, with access to information limited
to a "need-to-know" basis. The search for records responsive to
FOIA requests can cut across the compartmented filing systems
and can result in the compilation of records from different systems.
A reduction in the need to search through operational files will in-
crease the effectiveness of the CIA's policy of decentralization of
records systems.
Id. at 26-7 (Testimony of Charles A. Briggs, Executive Director, Central Intelligence
Agency).
9 Intelligence Committee Report at 12-13.
10 Government Operations Hearings at 37.
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The report of the Permanent Select Committee on Intelligence
identifies two additional benefits from H.R. 5164. The first is a di-
minished risk of disclosure of sensitive information. The second is
the elimination of the perception of confidential sources that the
CIA cannot protect their identities from disclosure.
While this Committee does not disagree with the assessment of
the Permanent Select Committee on Intelligence, this Committee is
not persuaded that either of these factors is major. H.R. 5164 will
lessen the risk of disclosure of sensitive information. However, the
release of information under the FOIA is totally within the control
of the agency processing a request. Given the careful and lengthy
review of records prior to release, it appears that the CIA is al-
ready minimizing these risks. As a result, the risks of disclosure
under the FOIA are probably no greater or no different than the
risks of other disclosures made by intelligence agencies.
With respect to the perceptions that the CIA may be unable to
protect information that would identify sources, the Permanent
Select Committee on Intelligence concluded that these perceptions
are not warranted because FOIA exemptions exist for information
that would identify sources. This Committee concurs. There is no
basis in current law for any fears that information that would
identify sources must be disclosed. The CIA now has and will con-
tinue to have the ability to protect its sources.
To the extent that the fears of intelligence sources are based on
misunderstandings about the current state of disclosure laws, H.R.
5164 may assist in providing reassurance that secrets can be and
will be protected. If H.R. 5164 leads to any improvement in the per-
ception of foreign sources about the ability and willingness of the
CIA to protect confidential and sensitive intelligence data, this is a
welcome byproduct of the legislation.
However, the unwarranted perceptions of foreign intelligence
sources about the operations of the FOIA do not provide justifica-
tion for changes in the law. The other reasons cited in this report
and in the report of the Permanent Select Committee on Intelli-
gence for support of H.R. 5164 are more than adequate to justify
passage of the bill.
H. COMMITTEE AMENDMENTS
The Committee approved H.R. 5164 with an amendment in the
nature of a substitute. The Committee substitute, which is substan-
tially similar to the bill as reported by the Permanent Select Com-
mittee on Intelligence, includes three sets of amendments.
A. Technical Amendments?The amendments to the original text
of H.R. 5164 made by the Permanent Select Committee on Intelli-
gence and incorporated in the amendment in the nature of a sub-
stitute reported by that Committee were also included in the
amendment in the nature of a substitute approved by the Govern-
ment Operations Committee. These amendments are largely tech-
nical in nature and any necessary explanation will be found in the
report of the Permanent Select Committee on Intelligence.
B. Oversight Amendment?Section 3 of the bill has been amend-
ed by addition of a reporting requirement in new subsection (b).
The Director of the CIA is required to prepare and submit to desig-
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nated . congressional -committees an. unclassified report on FOIA
processing. Reports are required every six months for the first two,
years following enactment,of H.R. 5164. This is .the period during
which CIA Director Casey has agreed to continue the CIA's current
budgetary and personnel allocation for FOIA activities. It is intend-
ed that these reports will be made public.
The new reporting irequirement +was added in order to, complete
the oversight provisions of H.R. 5164. As reported by the Perma-
nent Select Committee on Intelligence, H.R. 5164 already included..
a very carefully written judicial review provision that will enable
individuals to obtain judicial review of the CIA's compliance with
the bill. - ? -
,
? Congressional oversight rof the ,authority contained in H.R. 5164
will be undertaken in the House of Representatives by the Perma-
nent Select Committee on Intelligence and by ,the Committee on
Government Operations. An outline of plans for congressional over-
sight is included in an exchange of coi respondence between Repre-
sentative Glenn English, Chairman, of the Government Informa-
tion, Justice, and Agriculture Subcommittee, and Representative
Edward Boland, Chairman of the Permanent Select Committee on
Intelligence. This correspondence is set out below: .
HOUSE OF 'REPRESENTATIVES, ' GOVERNMENT INFORMATION,
? JUSTICE; AND AGRICULTURE, SUBCOMMITTEE OF THE COMMIT-
TEE ON GOVERNMENT OPERATIONS,
Washington, DC,?June.28, 1984. .
Hon. EDWARD P. BOLAND,
Chairman, Permanent Select Committee on Intelligence, '
Washington, DC'
DEAR MR. CHAIRMAN: The Subcommittee on Government Infor-
mation, Justice and Agriculture is currently considering H.R. 5164,
the "Central Intelligence Agency Information Act," which was re-
? ferred jointly to your Committee and the Committee on Government
Operations. The Subeommittee has completed hearings on the leg-
islation which, with the' hearing record and report produced by,'
your Committee, provide a full legislative record. I-commend your
Committee for its fine work on the bill.
In 'order to reassure those who have doubts about H.R. 5164, I
believe we must ensure careful oversight of CIA implementation of
the legislation. I have been concerned, in particular, about three
oversight issues which arise under H.R. 5164.
First, it will be important to ensure that the 'CIA- Observes the
commitments that CIA Director Casey has made to "establish a
specific 'program designed to substantially reduce, if not entirely
eliminate, the ,current. two-to-three year backlog" of FOIA requests
at the ,CIA and t?:5" "maintain the current budgetary and personnel
allocation for FOIA processing activities for a period of two years
following enactment'. .of H.R. 5164. The role of your Committee in
authorizing appropriations for CIA activities will be critical .to en-
suring that the CIA fulfills these commitments.
'Second, the public must have a basis upon which to determine
that the CIA is implementing in good faith the letter and the spirit
of H.R. 5164. Accordingly, I believe it would be appropriate to re-
,
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quire the CIA to issue four semiannual public reports on its imple-
mentation of, and compliance with, H.R. 5164. I intend to prepare
an amendment that would add this requirement to the bill.
Third, the filing procedures and practices of the CIA must be re-
viewed periodically to ensure that documents are not improperly
filed in operational files exempt from search and review under the
Freedom of Information Act. If such misfiling were to occur,
whether by accident or by design, information that the Congress
does not intend to exempt from disclosure could be withheld. Al-
though H.R. 5164 properly safeguards the extremely important
right of individual FOIA requesters to seek judicial review of CIA
implementation of the legislation, review of CIA filing practices in
such cases by the courts will be infrequent and less than compre-
hensive.
Only the Congress can provide effective monitoring of CIA filing
practices in a manner that will ensure public confidence that the
congressional will embodied in H.R. 5164 is being carried out faith-
fully. Because of the sensitive nature of CIA work, and the special
sensitivity of CIA operational files, the primary burden of oversee-
ing CIA filing practices under H.R. 5164 will, of course, rest with
the Members and staff of your committee.
To fulfill the oversight obligations of the Subcommittee on Gov-
ernment Information, Justice and Agriculture with respect to H.R.
5164, I intend to conduct personal oversight of the manner in
which the CIA applies the authority granted by H.R. 5164. I believe
such a personal commitment by Members of Congress to oversee
implementation of H.R. 5164 will be a critical element in ensuring
full CIA compliance with the intent of the Congress in enacting the
legislation.
To ensure that H.R. 5164 will be implemented in the manner we
intend, we must provide for thorough, vigorous oversight that will
protect both public access to government information and the secu-
rity of the nation's intelligence operations. Your ideas on oversight
of H.R. 5164 would be of great assistance to the Subcommittee
during our consideration of the legislation.
Sincerely,
GLENN ENGLISH, Chairman.
HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Washington, DC, July 9, 1984.
Hon. GLEN ENGLISH,
Chairman, Subcommittee on Government Information, Justice and
Agriculture, Committee on Government Operations House of
Representatives, Washington, DC.
DEAR MR. CHAIRMAN: Thank you for your letter of June 28, 1984
concerning oversight of CIA implementation of H.R. 5164, the
"Central Intelligence Agency Information Act" which is currently
pending in your Subcommittee. I share your concern that the Con-
gress must oversee CIA implementation of H.R. 5164.
You expressed particular interest in my views of three issues: (1)
commitments made by the Director of Central Intelligence concern-
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ing CIA Freedom of Information Act (FOIA) activities, (2) your pro-
posed amendment to require four semiannual public CIA reports
on implementation of H.R. 5164, and (3) congressional oversight of
CIA filing procedures. My views on these issues are similar to
yours.
In an exchange of letters with this Committee, reprinted in our
Committee report on H.R. 5164, the Director of Central Intelligence
committed the CIA to maintaining its resource commitment to
FOIA processing and to reducing substantially the CIA backlog in
processing of FOIA requests. Those commitments are an integral
part of the legislative history of H.R. 5164 and played a central
role in this committee's unanimous approval of the legislation. This
Committee will ensure full CIA compliance with these commit-
ments through close scrutiny of CIA FOIA activities and through
the Committee's role in authorizing appropriations for CIA activi-
ties, including its FOIA activities. I am confident that these com-
mitments will be realized.
Your letter indicated that you intend to offer an amendment to
H.R. 5164 to require a series of four semiannual public CIA reports
on CIA implementation of the bill. Such reports should be useful in
overseeing CIA implementation of the legislation, and I support the
concept of your amendment.
You also expressed concern that CIA misfiling of documents in
operational files exempted from the FOIA could result in withhold-
ing of information that was not intended by the Congress. As you
know, this Committee spent a great deal of time crafting the lan-
guage of H.R. 5164 to guard against just such an eventuality. The
safeguards contained in the bill, including the important judicial
review provisions, should assure the Congress and the public that
ducuments are not being misfiled. Moreover, the Permanent Select
Committee on Intelligence will undertake continuous and thorough
review of the CIA's FOIA practices and procedures, specifically in-
cluding its filing practices, to provide further assurances of full
CIA compliance with the letter and the sprit of H.R. 5164.
Careful congressional scrutiny of CIA implementation of H.R.
5164 will ensure that the CIA does not expand beyond congression-
al intent the limited FOIA relief H.R. 5164 provides to the CIA.
The Permanent Select Committee on Intelligence will undertake
such thorough scrutiny to ensure proper protection for public
access to government information and the security of the nation's
intelligence operations.
With every good wish, I am
Sincerely yours,
EDWARD P. BOLAND, Chairman.
The semi-annual report will allow the public to review the CIA's
implementation of the authority contained in H.R. 5164. This
report, together with judicial review and congressional oversight,
should provide adequate assurances that H.R. 5164 will be fairly
implemented by the CIA.
The report must include (a) a description of the specific measures
established by the CIA Director to improve the processing of re-
quests under the FOIA; (b) the current budgetary and personnel al-
locations for the processing of FOIA requests; (c) the number of
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FOIA requests received and processed during the six month period
covered by the report and the number of requests pending at the
time the report is issued; and (d) an estimate of the current aver-
age response time for completing the processing of FOIA requests
during the period covered by the report.
In preparing the estimate of the average response time, the CIA
may, at its option, provide a single estimate covering all requests
processed or it may categorize requests and provide separate esti-
mates for each category. For example, the CIA may prefer to make
one estimate for requests for which no responsive records were
found and a separate estimate for requests that required the
review of records.
An estimate of the current average response time is required
rather than the actual average response time because it is expected
that the response time will diminish significantly over the six
month period covered by each report. If the CIA is to meet the goal
of substantially reducing or entirely eliminating the current two to
three year backlog, the response time at the end of each six month
reporting period will have to be less than the average over the
entire six month period.
The FOIA already has a requirement that each agency file an
annual FOIA report." If the filing of the semiannual reports re-
quired by H.R. 5164 coincides with the annual reports presently re-
quired under the FOIA, the CIA may include all of the information
required under the two separate reporting provisions in a single
consolidated report.
The addition of the new oversight report as subsection (b) was ac-
companied by a reorganization of Section 3. The existing require-
ment for submission of a report on the feasibility of conducting sys-
tematic review for declassification and release of CIA information
of historical value was made subsection (a) of Section 3. A new sub-
section (c) was also added to identify the congressional committees
to which the reports required by subsections (a) and (b) are to be
submitted. The House Committee on Government Operations and
the Senate Committee on the Judiciary were added as recipients of
these reports. Except for the addition of the two Committees, all
other changes in Section 3 are wholly technical.
C. Privacy Act Amendment?Section 2 of H.R. 5164 has been
amended by the addition of a new subsection (c), which in turn
amends subsection (q) of the Privacy Act of 1974 12 by adding a
new paragraph (2). The new paragraph provides that no agency
shall rely on any exemption in the Privacy Act to withhold from
an individual any record which is otherwise accessible to the indi-
vidual under the provisions of the FOIA. This change in the Priva-
cy Act clarifies the relationship between the Privacy Act and the
FOIA.
H.R. 5164 provides that, notwithstanding the exemption of CIA
operational files from the search and review requirements of the
FOIA, United States citizens and resident aliens may continue to
request information on themselves from those operational files pur-
suant to the FOIA and the Privacy Act. These first-party requests
" 5 U.S.C. ? 552(d) (1982).
2 5 U.S.C. ? 522a (1982).
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will be processed in the same way that they are processed today.
The requested records must be searched and reviewed, and the
records must be disclosed unless the information is exempt from
disclosure under one of the nine exemptions of the FOIA.
The amendment to the Privacy Act is directly supportive of the
first-party exception to the operational file exemption in H.R. 5164.
The Privacy Act amendment is necessary because of the overlap-
ping access provisions of the FOIA and the Privacy Act. A recent
interpretation of the two laws may make the first-party exception
in H.R. 5164 unenforceable. The explanation of this issue is some-
what complex.
Both the FOIA and the Privacy Act contain procedures permit-
ting individuals to seek access to records about themselves." Both
laws have exemptions 14 that differ in scope and purpose, and some
information that is available under one law may be exempt under
the other. Ever since the passage of the Privacy Act in 1974, the
laws have been interpreted to require the disclosure of the maxi-
mum amount of information that was available under either law."
Thus, for first-party requests, the fact that certain information
fell within an exemption of the Privacy Act did not automatically
mean that the same information was exempt from access under the
FOIA. Similarly, the applicability of an FOIA exemption was not
relevant when disclosure was requested by the subject of the record
under the Privacy Act.16
This traditional understanding of the interrelationship between
the two laws was called into question recently. Several federal cir-
cuit courts have held that the Privacy Act is a statute within the
meaning of the third exemption of the FOIA 17 and that, as a con-
sequence, information that is exempt from disclosure under the
Privacy Act is also exempt from disclosure under the FOIA. This
was the conclusion of the Seventh Circuit in Terkel v. Kelly," and
the Fifth Circuit in Painter v. FBI.19 In both of these cases the
issue of the relationship between the FOIA and the Privacy Act
was raised by the courts and was not specifically briefed by the
parties. A more recent case in the Seventh Circuit in which the
issue was raised and briefed resulted in affirmance of the view
taken by that court in Terkel.2?
'3 5 U.S.C. ? 552(aX3); 5 U.S.C. ? 552a(d) (1982).
14 5 U.S.C. ? 552(b); 5 U.S.C. ? 552a(j) (k) (1982).
'6 [T]he Privacy Act should not be used to deny access to information about an individual
which would otherwise have been required to be disclosed to that individual under the Freedom
of Information Act.
". . The net effect of this approach should be to assure [that] individuals do not, as a conse-
quence of the Privacy Act, have less access to information pertaining to themselves than they
had prior to its enactment." Office of Management and Budget, Implementation of the Privacy
Act of 1974, Supplementary Guidance, 40 Federal Register 56741, 56742-3 (Dec. 4, 1974) (original
emphasis), reprinted in Oversight of the Privacy Act of 1974: Hearings before a Subcommittee of
the House Committee on Government Operations, 98th Cong., 1st Sess. 380-82 (1983).
See also the report of the Privacy Protection Study Commission, Personal Privacy in an Infor-
mation Society 512 (1977) ("Today, an individual is supposed to be granted access to the larger of
the amounts of information to which he would be entitled under the FOIA or the Privacy Act.
.") (original emphasis).
'6 See 5 U.S.C. ? 552a(q) (1982).
" 5 U.S.C. ?552(bX3) (1982). The third exemption of the FOIA incorporates into the FOIA
other statutes that authorize the withholding of information. These statutes are frequently re-
ferred to generically as "exemption three statutes" or "(bX3) statutes".
18 599 F.2d 214 (7th Cir. 1979).
615 F.2d 689 (5th Cir. 1980).
2? Shapiro v. Drug Enforcement Administration, 721 F.2d 215 (7th Cir. 1983), cert. granted, 80
L Ed 2d 180 (1984).
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However, courts in other circuits have reached the opposite con-
clusion. The D.C. Circuit in Greentree v. US. Customs Service2'
found that the Privacy Act exemptions were not authority to with-
hold information from first-party requesters under the FOIA. The
Third Circuit followed this case in Porter v. Department of Jus-
tice.22 In both of these cases, the Privacy Act/FOIA issue was spe-
cifically argued and thoroughly briefed by the parties.
With the circuit courts evenly divided on this question," the
Justice Department recently amended its FOIA and Privacy Act
regulations, effectively providing that the exemptions of the Priva-
cy Act grant authority to deny requests by first parties under the
FOIA as wel1.24 OMB Privacy Act guidance was also changed to re-
flect the same new interpretation of the two laws." In both in-
stances, the agencies reversed administrative interpretations of the
two laws that had stood since shortly after the passage of the Pri-
vacy Act in 1974.26
The Committee specifically rejects the interpretation set forth in
the decisions of the Fifth and Seventh Circuits, in the new Justice
Department regulations, and in the amended OMB guidelines. The
understanding of the relationship between the two laws that was
found to be applicable in the Greentree and Porter decisions and in
the original OMB Privacy Act Guidelines is reflective of the con-
gressional intent when the Privacy Act was passed.
Representative John Erlenborn, one of the principal authors of
both the Privacy Act of 1974 and the Freedom of Information Act
Amendments of 1974, has said that the two acts were passed to
"enhanc[e] the rights of our citizens to know what their Govern-
ment was doing, particularly as those government actions related
to individuals themselves. We certainly did not give with the one
hand and take away with the other days later." 27
In proposing legislation to clarify and restore the law on this
point, there is little purpose to be served in reviewing and dissect-
ing the existing record of legislative history. This has already been
done with great care in the Greentree case and elsewhere. While
this Committee has no doubt about the true intent of the law, some
have found sufficient ambiguity in both the law and its history to
fuel the current disagreement. Whatever ambiguity exists will be
removed by this change in the Privacy Act.
24674 F.2d 74 (D.C. Cir. 1982).
22 717 F.2d 787 (3rd Cir. 1983).
23 The Supreme Court has agreed to decide the issue. See Department of Justice v. Provenzano,
80 L Ed 2d 179; Shapiro v. Drug Enforcement Administration, 80 L Ed 2d 180 (1984).
24 The Department of Justice changed its Freedom of Information and Privacy Act regulations
to remove language that supported the practice of providing first-party requesters with the max-
imum amount of information that is available under either law. Compare 28 C.F.R. ?16.57 (1983)
with the.revised regulations at 49 Federal Register 12248 (Mar. 29, 1984). See especially para-
graph 12 on page 12252.
250MB amended its Privacy Act Supplementary Guidance to explicitly provide that the ex-
emptions in the Privacy Act are authority under the third exemption of the FOIA to withhold
information from first-party requesters. 49 Federal Register 12338 (Mar. 29, 1984).
26 See notes 15 and 23.
22 Rep. Erlenborn made this statement in connection with the introduction of H.R. 4696, a bill
to clarify the relationship of the Privacy Act of 1974 to the Freedom of Information Act. The
text of H.R. 4696 is identical to the Privacy Act amendment included in H.R. 5164. H.R. 4696
was introduced by Rep. Glenn English, Chairman of the Government Information, Justice, and
Agriculture Subcommittee. The cosponsors were Reps. Brooks, Horton, Kindness, and Erlen-
born. The introductory statements are at 130 Congressional Record H 310-12 (Jan. 31, 1984)
(daily ed.).
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? It is worthwhile, however, to explain in more detail how the Pri-
vacy Act and the FOIA fit together. Some of the uncertainty comes
from the language which was employed ,in 1974 to relate the Priva-
cy Act to the FOIA. The confusion has been enhanced by a lack of
understanding of the difference between the exemptions in the
FOIA and those in the Privacy Act.
The FOIA is primarily an access and disclosure statute, and the
exemptions define the categories of information that are exempt
froin public availability. The Privacy Act is both an access law and
a records management law." Portions of the Act require agencies
to give public notice of the existence and nature of record sys-
tems; 29 limit disclosure of records; 30 keep an accounting of disclo-
sures that are made; 31 collect and maintain information according
to prescribed standards of relevance, necessity, accuracy, timeli-
ness, and completeness; 32 as well as to permit individuals access to
records about themselves 33 and the opportunity to seek amend-
ment or correction of those records.34 The Act also provides civil
damages to individuals when there has been an intentional or will-
ful violation of these requirements."
The Privacy Act permits agencies to exempt some record systems
from selected requirements of the Act." The exemptions are thus
different than the exemptions of the FOIA because the Privacy Act
has different purposes. For example, some criminal law enforce-
ment records can be exempted from the Privacy Act's access provi-
sion.37 The Privacy Act also permits these records to be exempted
from the provision permitting amendment of records. Exemptions
also cover many other of the Act's requirements. The exemptions
do not serve the same purpose as the exemptions of the FOIA.
Since the Privacy Act is not exclusively an access law, there is
no reason why its exemptions should be read to have the same
effect as the exemptions of the FOIA. The Privacy Act exemptions
still have full meaning and purpose even if they are not effective
when an individual seeks access to his own records using the FOIA.
There are perfectly rational reasons why access to a record may be
allowed under the FOIA when access to the same record is denied
under the Privacy Act.
Access to records under the Privacy Act normally entails a corre-
sponding opportunity to seek amendment of information that may
be in error. There is no similar statutory amendment procedure
when access is obtained under the FOIA. For some records systems,
particularly those maintained by agencies with intelligence and
criminal law enforcement functions, Congress allowed agencies to
28 See Committee on Government Operations, Who Cares About Privacy? Oversight of the Pri-
vacy Act of 1974 By the Office of Management and Budget and By the Congress, 1-I.R Rep. No.
98-455, 98th Cong., 1st Sess. 4 (1983) ("In some respects, the Privacy Act is as much a records
management law as a privacy protection law.") (footnote omitted).
29 5 U.S.C. ? 552a (eX4) (1982).
30 Id. at ? 552a(b).
31 Id. at ? 552a(c).
32 Id. at ? 552a (eX1), (2) & (5).
33 Id. at ? 552a(dX1).
34 Id. at ? 552a(dX2).'
35 Id. at ? 552a(g).
35 Id. at ? 552a(j), (k). ?
37 Subsection (jX2) permits some criminal law enforcement records to be exempted from sub-
section (dX1) of the Act.
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exempt records from the amendment process. This exemption was
permitted because of the nature of law enforcement and intelli-
gence records and because it is not easy or desirable to mandate a
right of amendment for all of these records all of the time.
Continued access to those records under the FOIA is not incon-
sistent with the exemption from access under the Privacy Act. For
example, access under the FOIA does not provide or imply amend-
ment rights. Also, the exemptions in the FOIA already fully pro-
tect the government's interests in secrecy. The exemptions in the
Privacy Act protect a different set of governmental interests. There
is some overlap between these two sets of interests, but the smaller
area of overlap cannot be read to subsume the larger area of differ-
ence.
The amendment to the Privacy Act made by H.R. 5164 is needed
because of the scope of the Privacy Act exemptions for CIA records.
Subsection (j)(1) of the Privacy Act 3 8 permits the CIA to exempt all
of its records systems from many of the requirements of the Priva-
cy Act, including the access section. The CIA has taken the neces-
sary procedural steps to invoke Privacy Act exemptions for certain
of its records systems.39
If the exemption of CIA records from first-party access under the
Privacy Act were effective for first-party requests made under the
FOIA, then no such requests could be made for CIA records that
have been exempted under the Privacy Act. This would be true
notwithstanding the first-party exception to the search-and-review
exemption because H.R. 5164 does not provide any new procedures
or new rights for access requests. First-party requests for operation-
al files that are permitted under H.R. 5164 must continue to be
made under the procedures of the Privacy Act or FOIA. If the blan-
ket Privacy Act exemption for CIA records were recognized as
grounds for denial of first-party requests under the FOIA, then
first-party requesters would be unable to enforce the access rights
that H.R. 5164 so carefully attempts to preserve.
In other words, the Privacy Act amendment is supportive of an
access right that is already included in H.R. 5164 as reported by
the Permanent Select Committee on Intelligence. The amendment
does not change or broaden that access right. The CIA had already
agreed that first-party requests by citizens and resident aliens
should continue to be processed under the FOIA. The Committee
amendment simply assures that this right of access will be enforce-
able.
The clarification of the relationship between the Privacy Act and
the FOIA will not only affect requests made at the CIA but will
have a similar effect on requests made at all other agencies subject
to the Privacy Act and the FOIA. In removing any ambiguity that
may surround the relationship of the Privacy Act to the FOIA, the
Committee is specifically taking steps to apply a uniform interpre-
tation to the records of all federal agencies. To do otherwise would
only increase uncertainty, confusion, and litigation.
With the enactment of the Privacy Act amendment in H.R. 5164,
individuals will continue to be able to make requests for records
385 U.S.C. ? 552a(jX1) (1982).
'p32 C.F.R. ? 1901.61-31 (1983).
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about themselves using the procedures in either the Privacy Act,
the FOIA, or both. Agencies will be obliged to continue to process
requests under either or both laws. Agencies that had made it a
practice to treat a request made under either law as if the request
were made under both laws should continue to do so.
Information that is exempt under the 'FOIA but not under the
Privacy Act will have to be disclosed when requested under the
Privacy Act. Information that is exempt under the Privacy Act but
not under the FOIA will have to be disclosed when requested under
the FOIA.
In proposing this amendment to the Privacy Act, the Committee
is not suggesting that there is anything in current law that com-
pels an interpretation that is different than the one in the amend-
ment. In fact, it is the view of this Committee that the court in
Greentree correctly interpreted current law. With this amendment,
it is the Committee's purpose to clarify the law in this area in
order to avoid the need for any further dispute on this issue. Since
the issue has been raised directly by H.R. 5164, the Committee be-
lieves that it is appropriate to enact a clarifying amendment at
this time even though the amendment effectively only restates cur-
rent law.
The addition of the Privacy Act amendment as subsection (c) of
Section 2 of the bill required a further conforming change in Sec-
tion 4. As reported by the Permanent Select Committee on Intelli-
gence, Section 4 establishes an effective date for Section 2 of H.R.
5164. The amendment to Section 4 leaves unchanged the effective
date established by the Permanent Select Committee on Intelli-
gence with respect to subsections (a) and (b) of Section 2. As a clari-
fication of existing law, subsection (c) of Section 2, the Privacy Act
amendment, will be effective upon enactment and will apply to all
pending and future requests for access made under the Privacy Act
of 1974.
SECTION-BY-SECTION ANALYSIS
The report of the Permanent Select Committee on Intelligence
contains a detailed section-by-section analysis of H.R. 5164. The
analysis includes a lengthy discussion of that Committee's view of
how the authority contained in H.R. 5164 should be implemented
by the Central Intelligence Agency and how the judicial review
procedures should be implemented by the courts.
The entire section-by-section analysis from the report of the Per-
manent Select Committee on Intelligence is hereby incorporated
into this report by reference. The Government Operations Commit-
tee concurs in the views, understandings, and interpretations re-
flected in the section-by-section analysis contained in the report of
the Permanent Select Committee on Intelligence.
This section-by-section analysis will address those provisions of
H.R. 5164 that were amended by the Government Operations Com-
mittee. The amendments to the original text of H.R. 5164 made by
the Permanent Select Committee on Intelligence and incorporated
in the amendment in the nature of a substitute reported by that
Committee have also been incorporated in the amendment in the
nature of a substitute approved by the Government Operations
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Committee. These amendments are largely technical in nature and
will not be discussed separately in this report.
Section 1?Section 1 provides that the short title of the bill is the
"Central Intelligence Agency Information Act."
Section 2?Section 2 amends the National Security Act of 1947 to
permit the Director of Central Intelligence to exempt certain spe-
cifically defined CIA operational files from the search, review, and
disclosure requirements of the Freedom of Information Act. The
section also makes necessary technical additions to the table of con-
tents of the National Security Act of 1947.
Subsection (c) amends subsection (q) of the Privacy Act of 1974, 5
U.S.C. ? 552a(q) (1982), by adding a new paragraph (2). The new
paragraph provides that no agency shall rely on any exemption in
the Privacy Act to withhold from an individual any record which is
otherwise accessible to the individual under the provisions of the
FOIA. This change in the Privacy Act clarifies the relationship be-
tween the Privacy Act and the FOIA.
Section 3?Section 3 contains reporting provisions. Subsection (a)
requires the Director of Central Intelligence, in consultation with
the Archivist of the United States, the Librarian of Congress, and
historians, to report by June 1, 1985, on the feasibility of conduct-
ing systematic review for declassification and release of Central In-
telligence Agency records of historical value.
Subsection (b) requires the Director of Central Intelligence to
prepare and submit unclassified reports on FOIA processing. Re-
ports are required every six months for the first two years follow-
ing enactment of H.R. 5164.
The reports must include (a) a description of the specific meas-
ures established by the CIA Director to improve the processing of
requests under the FOIA; (b) the current budgetary and personnel
allocations for the processing of FOIA requests; (c) the number of
FOIA requests received and processed during the six month period
covered by the report and the number of requests pending at the
time the report is issued; and (d) an estimate of the current aver-
age response time for completing the processing of FOIA requests.
Subsection (c) provides that the reports required by subsections
(a) and (b) are to be submitted to the Permanent Select Committee
on Intelligence and the Committee on Government Operations of
the House of Representatives and to the Select Committee on Intel-
ligence and the Committee on the Judiciary of the Senate.
Section 4?Section 4 makes clear that the exemptions of CIA
operational files from FOIA search and review made by subsections
(a) and (b) of Section 2 of H.R. 5164 apply with respect to all FOIA
requests, whether made before or after enactment of the bill, and
to all FOIA lawsuits filed after February 7, 1984 (the day before
the House Intelligence Subcommittee on Legislation held a hearing
on the subject of H.R. 5164).
INFLATIONARY IMPACT
In compliance with clause 2(/)(4) of House Rule XI, it is the opin-
ion of this committee that the enactment of this bill is not expected
to have any inflationary impact on prices or costs in the operation
of the national economy.
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OVERSIGHT FINDINGS
The committee has made no detailed findings or recommenda-
tions other than those contained elsewhere in this report.
NEW BUDGET AUTHORITY AND TAX EXPENDITURES
No new budget authority or tax expenditures are required by
this legislation.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
The cost estimate prepared by the Congressional Budget Office
under Sections 308(a) and 403 of the Congressional Budget Act of
1974 is contained in the following letter:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washinton, DC, September 5, 1984.
Hon. JACK BROOKS,
Chairman, Committee on Government Operations,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has re-
viewed H.R. 5164, Central Intelligence Agency Information Act, as
ordered reported on July 31, 1984 by the House Committee on Gov-
ernment Operations. The bill exempts certain operational files
from search, review, publication, or disclosure under the Freedom
of Information Act and requires the Director of Central Intelli-
gence to make additional reports to Congress. No additional costs
to the federal or state and local governments are estimated to
result from enacting this legislation.
Should the Committee so desire, we would be pleased to provide
further details on the attached cost estimate.
Sincerely,
RUDOLPH G. PENNER, Director.
COMMITTEE ESTIMATE OF COST
The Committee agrees with the estimate of the Congressional
Budget Office. The Committee estimates that H.R. 5164 will result
in some cost reduction in the processing of Freedom of Information
Act requests at the Central Intelligence Agency. It is impossible to
estimate the amount of savings because it is dependent in part on
the number of FOIA requests received by the CIA in the future. In
any event, because the CIA has agreed to make no reduction in
budgetary or personnel allocations for FOIA processing during the
two years following enactment, no savings will be realized until the
third year.
CHANGES IN EXISTING LAW MADE BY THE BILL, As REPORTED
In compliance with clause 3 of Rule XIII of the Rules of the
House of Representatives, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be omit-
ted is enclosed in black brackets, new matter is printed in italics,
existing law in which no change is proposed is shown in roman):
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NATIONAL SECURITY ACT OF 1947
AN ACT To promote the national security by providing for a Secretary of Defense;
for a National Military Establishment; for a Department of the Army, a Depart-
ment of the Navy, and a Department of the Air Force; and for the coordination of
the activities of the National Military Establishment with other departments and
agencies of the Government concerned with the national security.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SHORT TITLE
That this Act may be cited as the "National Security Act of
1947".
TABLE OF CONTENTS
TITLE VH?PROTECTION OF OPERATIONAL FILES OF THE CENTRAL
INTELLIGENCE AGENCY
Sec. 701. Exemption of certain operational files from search, review, publication, or
disclosure.
Sec. 702. Decennial review of exempted operational files.
TITLE VH?PROTECTION OF OPERATIONAL FILES OF THE
CENTRAL INTELLIGENCE AGENCY
EXEMPTION OF CERTAIN OPERATIONAL FILES FROM SEARCH, REVIEW,
PUBLICATION, OR DISCLOSURE
SEC. 701. (a) Operational files of the Central Intelligence Agency
may be exempted by the Director of Central Intelligence from the
provisions of section 552 of title 5, United States Code (Freedom of
Information Act), which require publication or disclosure, or search
or review in connection therewith.
(b) For the purposes of this title the term "operational files"
means?
(1) files of the Directorate of Operations which document the
conduct of foreign intelligence or counterintelligence operations
or intelligence or security liaison arrangements or information
exchanges with foreign governments or their intelligence or se-
curity services;
(2) files of the Directorate for Science and Technology which
document the means by which foreign intelligence or counterin-
telligence is collected through scientific and technical systems;
and
(3) files of the Office of Security which document investiga-
tions conducted to determine the suitability of potential foreign
intelligence or counterintelligence sources;
except that files which are the sole repository of disseminated intel-
ligence are not operational files.
(c) Notwithstanding subsection (a) of this section, exempted oper-
ational files shall continue to be subject to search and review for
information concerning?
(1) United States citizens or aliens lawfully admitted for per-
manent residence who have requested information on them-
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selves pursuant to the provisions of section 552 of title 5, United
States Code (Freedom of Information Act), or section 552a of
title 5, United States Code (Privacy Act of 1974);
(2) any special activity the existence of which is not exempt
from disclosure under the provisions of section 552 of title 5,
United States Code (Freedom of Information Act); or
(3) the specific subject matter of an investigation by the intel-
ligence committees of the Congress, the Intelligence Oversight
Board, the Department of Justice, the Office of General Counsel
of the Central Intelligence Agency, the Office of Inspector Gen-
eral of the Central Intelligence Agency, or the Office of the Di-
rector of Central Intelligence for any impropriety, or violation of
law, Executive order, or Presidential directive in the conduct of
an intelligence activity.
(d)(1) Files that are not exempted under subsection (a) of this sec-
tion which contain information derived or disseminated from ex-
empted operational files shall be subject to search and review.
(2) The inclusion of information from exempted operational files
in files that are not exempted under subsection (a) of this section
shall not affect the exemption under subsection (a) of this section of
the originating operational files from search, review, publication, or
disclosure.
(3) Records from exempted operational files which have been dis-
seminated to and referred in files that are not exempted under sub-
section (a) of this section and which have been returned to exempted
operational files for sole retention shall be subject to search and
review.
(e) The provisions of subsection (a) of this section shall not be su-
perseded except by a provision of law which is enacted after the date
of enactment of subsection (a), and which specifically cites and re-
peals or modifies its provisions.
(f) Whenever any person who has requested agency records under
section 552 of title 5, United States Code (Freedom of Information
Act), alleges that the Central Intelligence Agency has improperly
withheld records because of failure to comply with any provision of
this section, judicial review shall be available under the terms set
forth in section 552(a)(4)(B) of title 5, United States Code, except
that?
(1) in any case in which information specifically authorized
under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign relations is
filed with, or produced for, the court by the Central Intelligence
Agency, such information shall be examined ex parte, in camera
by the court;
(2) the court shall, to the fullest extent practicable, determine
issues of fact based on sworn written submissions of the parties;
(3) When a complaint alleges that requested records were im-
properly withheld because of improper placement solely in ex-
empted operational files, the complaint shall support such alle-
gations with a sworn written submission, based upon personal
knowledge or otherwise admissible evidence;
(4)(A) When a complainant alleges that requested records
were improperly withheld because of improper exemption of
operational files, the Central Intelligence Agency shall meet its
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burden under section 552(a)(4)(B) of title 5, United States Code,
by demonstrating to the court by sworn written submission that
exempted operational files likely to contain responsive records
currently perform the functions set forth in subsection (b) of
this section; and
(B) the court may not order the Central Intelligence Agency to
review the content of any exempted operational file or files in
order to make the demonstration required under subparagraph
(A) of this paragraph, unless the complainant disputes the Cen-
tral Intelligence Agency's showing with a sworn written submis-
sion based on personal knowledge or otherwise admissible evi-
dence;
(5) in proceedings under paragraphs (3) and (4) of this subsec-
tion, the parties shall not obtain discovery pursuant to rules 26
through 36 of the Federal Rules of Civil Procedure, except that
requests for admission may be made pursuant to rules 26 and
36;
(6) if the court finds under this subsection that the Central
Intelligence Agency has improperly withheld requested records
because of failure to comply with any provision of this section,
the court shall order the Central Intelligence Agency to search
and review the appropriate exempted operational file or files for
the requested records and make such records, or portions there-
of available in accordance with the provisions of section 552 of
title 5, United States Code (Freedom of Information Act), and
such order shall be the exclusive remedy for failure to comply
with this section; and
(7) if at any time following the filing of a complaint pursuant
to this subsection the Central Intelligence Agency agrees to
search the appropriate exempted operational file or files for the
requested records, the court shall dismiss the claim based upon
such complaint.
DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
SEC. 702. (a) Not less than once every ten years, the Director of
Central Intelligence shall review the exemptions in force under sub-
section (a) of section 701 of this Act to determine whether such ex-
emptions may be removed from any category of exempted operation-
al files or any portion thereof
(b) The review required by subsection (a) of this section shall in-
clude consideration of the historical value or other public interest in
the subject matter of the particular category of files or portions
thereof and the potential for declassifying a significant part of the
information contained therein.
(c) A complainant who alleges that the Central Intelligence
Agency has improperly withheld records because of failure to
comply with this section may seek judicial review in the district
court of the United States of the district in which any of the parties
reside, or in the District of Columbia. In such a proceeding, the
court's review shall be limited to determining (1) whether the Cen-
tral Intelligence Agency has conducted the review required by sub-
section (a) of this section within ten years of enactment of this title
or within ten years after the last review, and (2) whether the Cen-
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tral Intelligence Agency, in fact, considered the criteria set forth in
subsection (b) of this section in conducting the required review.
TITLE 5, UNITED STATES CODE
CHAPTER 5?ADMINISTRATIVE PROCEDURE
Subchapter II?Administrative Procedure
? 552a. Records maintained on individuals
(a) DEFINITIONS.?* "
(q)(1) EFFECT OF OTHER LAWS.?No agency shall rely on any ex-
emption contained in section 552 of this title to withhold from an
individual any record which is otherwise accessible to such individ-
ual under the provisions of this section.
(2) No agency shall rely on any exemption in this section to with-
hold from an individual any record which is otherwise accessible to
such individual under the provisions of section 552 of this title.
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DISSENTING VIEWS OF HON. TED WEISS
The Central Intelligence Agency Information Act (H.R. 5164) at-
tempts to balance the right of the public to know about the activi-
ties of its government, against the legitimate need, in very limited
situations, to restrict access to information maintained by the CIA.
I believe that the balance has not been properly reached by this
bill, so that it now reflects a serious rollback in public access rights
contained in the Freedom of Information Act (5 USC 552), and, in
addition, and unnecessary limitation on the power of the courts to
review CIA actions.
The record of the CIA in meeting its responsibilities under the
Freedom of Information Act has been appalling. It has consistently
ignored the mandate- of the Congress to submit, except in limited
circumstances, to the scrutiny of public review, claiming a host of
operational reasons to justify what the public now knows were un-
justifiable cover-ups of illegal activities.
I concur with the view expressed by the Committee, and the Per-
manent-Select Committee on Intelligence, that there is a legitimate
need to protect some CIA information from public release. I be-
lieve, however, that restricting public access should be the excep-
tion, not the norm. The Congress would be better served by enact-
ing legislation which would clarify the limited circumstances under
which information could be withheld by the CIA from release
under the Freedom of Information Act, without limiting court
review.
This was, in fact, proposed by former federal district court Judge
and Representative Richardson Preyer when in 1980, as Chair of
the Government Information and Individual Rights Subcommittee,
he introduced H.R. 7055 which would have exempted FOIA disclo-
sure of information provided to the CIA in confidence by a secret
intelligence source or a foreign intelligence service, but would have
left in place judicial review of CIA action.
Instead, this bill grants a carte blanche exemption from FOIA
for the CIA, under the guise of procedural reform.
I believe that existing laws are adequate to protect properly clas-
sified foreign intelligence information. The FOIA already contains
exceptions created by 5 USC 552(b) (1) and (3) which allow the CIA
to protect sensitive information. In those cases where the requester
then seeks judicial review of the CIA decision to withhold the infor-
mation from release, the court is empowered to conduct a de novo
review, including in camera review of the documents in question.
As a matter of practice, the courts generally find in favor of the
agency in such cases. And in the entire history of the FOIA the in-
volvement of the court has not resulted in an unauthorized release
of the documents.
Yet H.R. 5164, as reported by the Committee, would effectively
bar access to almost all operational files of the CIA, except under
(24)
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three very limited situations. Had this law been part of the origi-
nal FOIA legislation, it is likely that the American people would
never have learned of the numerous illegal undertakings by the
agency, at home and abroad, that have learned of the numerous il-
legal undertakings by the agency, at home and abroad, that have
come to light in recent years.
If, per chance, there is any relevant information which could be
released under the criteria of H.R. 5164, but that the CIA neverthe-
less improperly attempts to withhold from disclosure, the ability of
a requester, and of the courts, to compel disclosure are so restricted
by H.R. 5164 as to be rendered meaningless. For example, the bill
creates an obvious CATCH-22 for most relevant requests for docu-
ments. A requester can not even use the FOIA to secure CIA docu-
ments until he/she can convince an oversight agency or committee
to investigate the specific subject of the request. This is likely an
impossible hurdle to meet since the requester probably needs the
documents to make his case to the oversight group. Assuming the
requester can get this far, his/her rights to gather information by
discovery in federal court actions are severely limited, even under
close court supervision to protect sensitive information. Depositions
and interrogatories are eliminated, even if a court orders one,
under the provisions of H.R. 5164. Production of documents is per-
mitted, but before the court can order one, under the provisions of
H.R. 5164. Production of documents is permitted, but before the
court can order this, H.R. 5164 requires the requester to prove his
case on the merits, without the benefit of the documents needed to
do so. If a requester were in the position to make such a showing
without the documents, he probably wouldn't be seeking them in
the first place.
Not only are discovery rights severely limited, but normal rules
of federal evidence law are altered in unprecedented ways. The bill
requires that all issues of fact be based on sworn written submis-
sions of the parties, which although appearing to be reasonable,
greatly limits the value of third party input, and the value of the
normal discovery process. Under subsection (f)(3), even the written
information which can be submitted by the person seeking court
intervention, and which can be considered by the court, is limited
to only personal and 'admissible' evidence, restrictions not found
anywhere else in federal procedure.
Judicial review of CIA is limited even further. In almost all
cases, the ability of the courts to even review contested information
is eliminated by subsection (0(4)(A) which permits the CIA to sub-
stitute a written statement is lieu of the court's independent
review of the documents. Nor may the courts even require that the
CIA go back and review the documents themselves in the prepara-
tion of the written statement which is to take the place of the
court's review. Then even in the event that the court were to find
that the agency willfully violated the law, H.R. 5164 removes the
court's power to impose sanctions on the agency or its employees
for their illegal activity.
Finally, under the artful language of subsection (0(7), if the CIA
agrees to search the file, but not necessarily to release any informa-
tion contained therein, at any time during the pendency of the liti-
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gation, the court would be required to dismiss the court action,
without any judicial discretion.
While the Congress may be willing to abdicate its responsibilities
regarding the CIA, to the CIA, I am hopeful that the courts will
not permit this dangerous intrusion.
If the Congress is of the mind to restrict the public's access to
information, we should do it directly and specifically, without tying
the hands of the courts to enforce the laws we enact.
TED WEISS.
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